The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-29
THE INDIANAPOLIS JOURNAL. SATURDAY &c. 1887
parent that the Legislature intended that those
sections of the code relating TO venue should not

parent that the Legislature intended that those
sections Of the code relating TO venue should not
apply.
It was further held that under the code divorce
are, in at least, civil actions, and
that the rules of pleading and practice provided 10 the
civil code will apply TO them except to the extent thas
different procedure may be provided IN the divorce
and the extent that it be apparent that the
Legislature intended otherwise.
This indicates the drift of the court, rs well
as the other cases. to bring these special pro-
ceeoings, SO far as may be done without violence
to the special statute, under the control OF the
general statute regulating the practice IN our
courts.
that the above section of the civil code providing for
change from the judge is applicable to divorce cases
and that upon the fling of the proper affidavit under
that section i'll the change must be granted
We reason why the reasoning and conclu
sions in that case are not applicable and controlling
here Changes of provided Tor IN order that
parties tgant may have fair and impartial trials and
hence the provision for change from interested or
biased Judge and hence also the provision for change
of venue from the county where of the parties
may have undue influence over the citizens, or
where an odium may attach to of the parties,
to his of action defense account OF local
prejudice.
Now read again:
The more rational conclusion would seem to be that
the intention that such should be tried IN
impartial tribunals and that provision is made
in the divorce act for reaching such tribunals by
change of venue, when necessary, the intention was
that resort might and should be had to the code OF
civil procedure There is nothing in the divorce act
to show o indicate intention the part OF the
Legislature II at the above section of the code provd
ing for change OF venue from the county should not
be applicable to proceeding for divorce in proper
unless it be the fact that such change is pro-
vided for in that act and that the must be
menced in the county where the plaintiff resides.
Now, if your Honors please use that case to
show that proceeding in especial sense spe-
| cial. regulated by a statute having reference
| anywhere to these provisions of the code as to
,1o chAI
cable to all other such proceedings, that the pro-
visions of the general code as to practice not in
consistent with the provision of the special stat
| ute should stand and venture to say that with
| out overriding the principles of that case the
conclusion cannot be avoided that in the case Of
| quo warranto or information the general provis-
| ions of our statute as to venue must apply. In
deed, in the use of the words ''The Circuit Court
| of the proper county," as / have already said
| there is suggestion of reference to another
statute to determine what is the proper county;
| the legislature did not need to repeat what had
been elsewhere enacted, but adopted it by these
| words of reference.
If your Honors please it is not in strict sense
| an information that vou have before yon. 1t is
| an injunction case. To be sure, that is ancilary
to proceeding by information. but the appeal
| is from order granting an injunction Is
there any doubt, may it please your Hon
ors, that in the of an injunction the
| venue is in the county of the defendants
residence2 Can there be any doubt about that?
this article entitled Information was not so
special, not so complete IN itself as prescribing
new and exclusive remedy, and all its attendants
| and circumstances. but that they might go out
and incorporate with it an action of injunction,
where the venue, as l have already said, is ad-
mittedly and confessedly controlled by the gen
eral statutes.
The court has been compelled to adopt this
construction in dealing with these special stat
utes. There was no provision for trial by jury
in the quo warranto act. If the courts are te
| treat it as complete dealing with the subject
fully and are not to look to other statutes as in
| corporated; if they are not to treat it civil
action, and give to the trial of such cases al
those Incidents privileges and limitations that
belong to civil actions then there is no trial by
| jury; and yet the court, In referred to-
decided that a trial by jury was allowable
because it was civil action, and the trial BY
jury in civil actions is guaranteed by the Consti
tuition Here We have, then, a civil action. specia
if you choose to call it, without any definition
as to what the venue shall be, and we have
general statute regulating civil actions. declar
ing, as is admitted, that in a case like this tn,
venue is in Allen county. So say. your Honors
this is the threshold question. You must steI
over it or trample it urder foot before you cal
invade the consideration of questions that Ii,
further along in this case. And again, l repeat
whatever source it comes from, whatever need
it is supposed to subserve it is brutally insulting
to gay to the Supreme Court of Indiana tina
they should consider questions and decide tn
rights of a man over whose person they have n
, jurisdictions to say that because he is called her
in this information q usurper into an Office thi
. high court must usurp functions which hav
been denied it by the law, in order to cure on
usurpation by another.
/ But, if your Honors please. if it were estab
lished that you had acquired jurisdiction owe
r the respondent here, there is still anothe
threshold question to be considered, and that re
lates to your jurisdiction of the subject
of the case. Both these conditions must exist
or any opinion you may deliver upon the Ques
tons involved; other than these is obiter is in
trusive, is so far as they may fortify any MAJ
3 in course OF action which he has entered upon
making this high court subservient to uses tina
Q were not contemplated by law. What are tn
: jursdictioual questions as to the subj matte
s that presented? think there are two
your Honors please as this case now presen,
o itself. First. have the courts Of this State th
| power, under the Constitution, to try the tit
E to the Office OF acknowledgements Secondly
t If that be conceded. have they power, by injun
ton, to invade the legislative halls, and restrai
y coordinate department of this governmer
q from the exercise Of its will and pleasure2 B,
cause, if your Honors please, think this actor
n In that aspect of it-this Injunction restrainin
IS Colonel Robertson from presiding over the Sci
ate OF lndiana--not at the solicitation of IL
d Senate, not because the Senate has expressed
/. your Honors any such wish, not b
: cause they have appealed to yc
n for protection, but at the suggestic
e OF man, an individual, that you should issr
"a your writ Of injunction, and say to the Senate
q lndlana-for 1t IS SO said whenever you say th
e Colonel Robertson shall not preside as Lieute
# ant-governor-yous shall not allow the responde,
{. to presde-you restrain the discretion OF Il
o Senate itself. Whenever you say, as this ",
q and must criticize it in respectful terms
Y much as | resent the idea that any court in Il
1 United States can intrude into the leeslari
e halls anywhere in these States, or in our gener
n government, constituted on one model of thr
le coordinate departments of government, tn
% any court can intrude into any legislative hs
k and say to the body particular person shall n
If preside over your deliberations. But l shou
IF discuss these questions in the order in which
IN have suggested them. Is there jurisdiction
the courts of Indiana to try the title to the off
OF Governor or Lieutenant governor? I q
10 Governor or Acknowledgements becaus
~ may 1t please your Honors, If you ha
:. the iuriSdiciion tn try tho t:tlo - -